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committed serious criminal offenses while abroad in peacetime: Kinsella v. Singleton, 361 U.S. 234 (1960); Grisham v. Hagan, 361 U.S. 278 (1960); and McElroy v. Gugliardo, 301 U.S. 281 (1960).

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Jurisdiction Based on Agreement With the
Territorial State

U.S.-Canada

Bilateral Agreements

On April 18, 1977, President Carter sent to the Senate with a view to receiving its advice and consent to ratification the Treaty between. the United States and Canada on the Execution of Penal Sentences, which was signed on March 2, 1977. Set forth below are portions of the report with respect to the treaty submitted by Secretary Vance to President Carter on April 8, 1977:

The Treaty is essentially similar to that with the United Mexican States which was signed on November 25, 1976, and has already been submitted by you to the Senate. It would permit citizens of either nation who had been convicted in the courts of the other country to serve their sentences in their home country; in each case the consent of the offender as well as the approval of the authorities of the two Governments would be required.

The Treaty is intended both to relieve the special hardships which fall upon prisoners incarcerated far from home and to make their rehabilitation more feasible and also to relieve diplomatic and law enforcement relations between the two countries of the strains that arise from the imprisonment of substantial number of each country's nationals in the institutions of the other. It constitutes part of an ongoing effort to improve relations between the two countries. It is also part of various efforts to establish closer international cooperation in law enforcement activities. The Treaty is without a direct analogy in United States practice, except for the Status of Forces Agreement with the Republic of Korea (17 UST 1677; TIAS 6127), but there are multilateral arrangements of this kind among the Nordic countries and in the Council of Europe.

The basic terms of the Treaty are as follows. Each transfer would be contingent upon the consent both of the state which sentenced the prisoner (the Transferring State) and of the state which was to receive and confine him (the Receiving State). The decision to transfer would be made on the basis of the whole record of the prisoner and the authorities' estimate as to the likelihood that the transfer would be beneficial (article III). In each case, the express consent of the prisoner concerned would have to be obtained, there can be no involuntary transfer under this Treaty. Certain categories of prisoners are excluded from the terms of the Treaty: (1) military offenders; (2) those having less than six months to serve when processing of their

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transfer begins; and (3) offenders against the immigration laws (article II). The program is basically one between the two Federal Governments. Prisoners who are transferred become the responsibility of the Federal Government in the Receiving State. However, a state or province in either country which wishes to allow some of the prisoners which it holds to be transferred may exercise that option if it chooses.

When a prisoner has been transferred, the following procedures govern his treatment thereafter. The original sentence would carry over to his new confinement, preserving deductions for good behavior in prison, labor done by him and pretrial confinement. The Transferring State retains the power to grant pardon or amnesty. With these exceptions, the execution of the sentence is to be carried out according to the rules and practices prevailing in the state to which he is transferred (article IV (1)). In particular, the rules of the Receiving State as to parole will determine the date at which the prisoner is released from confinement. Each nation is to report to the other on the manner in which it is administering the confinement of transferred prisoners.

The Treaty provides in article II (3) that no prisoner will be transferred until the time for leave to appeal has expired and that no proceedings by way of appeal or collateral attack be pending. It further provides that any collateral attack on the sentence must proceed through the courts of the country which imposed the sentence (article V).

The Treaty will require implementing legislation to give it effect within the United States....

S. Ex. H, 95th Cong., 1st Sess, V-VI.

By a vote of 95 in favor and none opposed, the Senate gave its advice and consent to ratification of this treaty on July 19, 1977. See 123 Cong. Rec. S 12269 (daily ed.). However, the United States did not exchange instruments of ratification with Canada concerning this treaty in 1977.

The Agreement under art. IV of the Mutual Defense Treaty of Oct. 1, 1953, regarding Facilities and Areas and the Status of United States Armed Forces in Korea, with agreed minutes and exchange of notes was signed on July 9, 1966 (TIAS 6127; 17 UST 1677; 674 UNTS 163; entered into force on Feb. 9, 1967).

For further information concerning the Treaty between the United States and Mexico on the Execution of Penal Sentences, see the 1976 Digest, Ch. 6, § 3. pp. 282-292.

U.S.-Mexico

On July 21, 1977, the Senate by a vote of 90 in favor and none opposed gave its advice and consent to ratification of the Treaty between the United States and Mexico on the Execution of Penal Sentences signed on November 25, 1976. On October 31, 1977, Deputy Secretary of State Warren Christopher exchanged instruments of

ratification for this treaty with Mexican Ambassador Hugo B. Margain. The treaty entered into force on November 30, 1977.

123 Cong. Rec. S 12553 (daily ed. July 21, 1977).

For further information concerning this treaty, see the 1976 Digest, Ch. 6, § 3, pp. 282-292.

Legislation on Prisoner Exchange Treaties

On October 28, 1977, President Carter signed into law an act to provide for the implementation of treaties for the transfer of offenders to or from foreign countries (Public Law 95-144; 91 Stat. 1212). Portions of President Carter's remarks on signing this act follow:

*

We have about 2,000 American prisoners incarcerated in foreign lands. Historically we've had an arrangement with the Scandanavian countries that when we have their prisoners in our jails or when they have our prisoners in their jails, that we exchange those American citizens and their citizens. And now we are extending this principle to Mexico and also to Canada.

We have 575 Americans in Mexican prisons, and we have 250 Americans in Canadian prisons. And after negotiating these treaties, we now have implemented that process legally by which these prisoners might be exchanged.

If they so desire, Mexican and Canadian prisoners in our jails can go back to their own lands to serve out their terms, and vice versa concerning our own American citizens in Mexican and Canadian prisons.

*

13 Weekly Comp. of Pres. Doc. 1673 (Oct. 31, 1977).

The text of the Act on Treaties for the Transfer of Offenders to or from Foreign Countries, which amends 18 U.S.C. 4100 et seq., appears below:

§ 4100. Scope and limitation of chapter

(a) The provisions of this chapter relating to the transfer of offenders shall be applicable only when a treaty providing for such a transfer is in force, and shall only be applicable to transfers of offenders to and from a foreign country pursuant to such a treaty. A sentence imposed by a foreign country upon an offender who is subsequently transferred to the United States pursuant to a treaty shall be subject to being fully executed in the United States even though the treaty under which the offender was transferred is no longer in force.

(b) An offender may be transferred from the United States pursuant to this chapter only to a country of which the offender is a citizen or national. Only an offender who is a citizen or national of the United States may be transferred to the United States. An offender may be transferred to or from the United States only with the offender's consent, and only if the offense for which the offender was sentenced satisfies the requirement of double criminality as defined in this chapter. Once an offender's consent to transfer has been verified by a verifying officer, that consent shall be irrevocable. If at the time of transfer the offender is under eighteen years of age the transfer shall not be accomplished unless consent to the transfer be given by a parent or guardian or by an appropriate court of the sentencing country.

(c) An offender shall not be transferred to or from the United States if a proceeding by way of appeal or of collateral attack upon the conviction or sentence be pending.

(d) The United States upon receiving notice from the country which imposed the sentence that the offender has been granted a pardon, commutation, or amnesty, or that there has been an ameliorating modification or a revocation of the sentence shall give the offender the benefit of the action taken by the sentencing country.

§ 4101. Definitions

As used in this chapter the term

(a) "double criminality" means that at the time of transfer of an offender the offense for which he has been sentenced is still an offense in the transferring country and is also an offense in the receiving country. With regard to a country which has a federal form of government, an act shall be deemed to be an offense in that country if it is an offense under the federal laws or the laws of any state or province thereof;

(b) "imprisonment" means a penalty imposed by a court under which the individual is confined to an institution;

(c) "juvenile" means

(1) a person who is under eighteen years of age; or

(2) for the purpose of proceedings and disposition under chapter 403 of this title because of an act of juvenile delinquency, a person who is under twentyone years of age;

(d) "juvenile delinquency" means

(1) a violation of the laws of the United States or a State thereof or of a foreign country committed by a juvenile which would have been a crime if committed by an adult; or

(2) noncriminal acts committed by a juvenile for which supervision or treatment by juvenile authorities of the United States, a State thereof, or of the foreign country concerned is authorized;

(e) "offender" means a person who has been convicted of an offense or who has been adjudged to have committed an act of juvenile delinquency ;

(f) "parole" means any form of release of an offender from imprisonment to the community by a releasing authority prior to the expiration of his sentence, subject to conditions imposed by the releasing authority and to its supervision;

(g) "probation" means any form of a sentence to a penalty of imprisonment the execution of which is suspended and the offender is permitted to remain at liberty under supervision and subject to conditions for the breach of which the suspended penalty of imprisonment may be ordered executed;

(h) "sentence" means not only the penalty imposed but also the judgment of conviction in a criminal case or a judgment of acquittal in the same proceeding, or the adjudication of delinquency in a juvenile delinquency proceeding or dismissal of allegations of delinquency in the same proceedings;

(i) "State" means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession of the United States;

(j) "transfer" means a transfer of an individual for the purpose of the execution in one country of a sentence imposed by the courts of another country; and

(k) "treaty" means a treaty under which an offender sentenced in the courts of one country may be transferred to the country of which he is a citizen or national for the purpose of serving the sentence.

§ 4105. Transfer of offenders serving sentence of imprisonment

(a) Except as provided elsewhere in this section, an offender serving a sentence of imprisonment in a foreign country transferred to the custody of the Attorney General shall remain in the custody of the Attorney General under the same conditions and for the same period of time as an offender who had been committed to the custody of the Attorney General by a court of the United States for the period of time imposed by the sentencing court.

(b) The transferred offender shall be given credit toward service of the sentence for any days, prior to the date of commencement of the sentence, spent

in custody in connection with the offense or acts for which the sentence was imposed.

(c) (1) The transferred offender shall be entitled to all credits for good time, for labor, or any other credit toward the service of the sentence which had been given by the transferring country for time served as of the time of the transfer. Subsequent to the transfer, the offender shall in addition be entitled to credits for good time, computed on the basis of the time remaining to be served at the time of the transfer and at the rate provided in section 4161 of this title for a sentence of the length of the total sentence imposed and certified by the foreign authorities. These credits shall be combined to provide a release date for the offender pursuant to section 4164 of this title.

(2) If the country from which the offender is transferred does not give credit for good time, the basis of computing the deduction from the sentence shall be the sentence imposed by the sentencing court and certified to be served upon transfer, at the rate provided in section 4161 of this title.

(3) A transferred offender may earn extra good time deductions, as authorized in section 4162 of this title, from the time of transfer.

(4) All credits toward service of the sentence, other than the credit for time in custody before sentencing, may be forfeited as provided in section 4165 of this title and may be restored by the Attorney General as provided in section 4166 of this title.

(5) Any sentence for an offense against the United States, imposed while the transferred offender is serving the sentence of imprisonment imposed in a foreign country, shall be aggregated with the foreign sentence, in the same manner as if the foreign sentence was one imposed by a United States district court for an offense against the United States.

§ 4111. Prosecution barred by foreign conviction

An offender transferred to the United States shall not be detained, prosecuted, tried, or sentenced by the United States, or any State thereof for any offense the prosecution of which would have been barred if the sentence upon which the transfer was based had been by a court of the jurisdiction seeking to prosecute the transferred offender, or if prosecution would have been barred by the laws of the jurisdiction seeking to prosecute the transferred offender if the sentence on which the transfer was based had been issued by a court of the United States or by a court of another State.

§ 4113. Status of alien offender transferred to a foreign country

(a) An alien who is deportable from the United States but who has been granted voluntary departure pursuant to section 1252 (b) or section 1254 (e) of title 8, United States Code, and who is transferred to a foreign country pursuant to this chapter shall be deemed for all purposes to have voluntarily departed from this country.

(b) An alien who is the subject of an order of deportation from the United States pursuant to section 1252 of title 8, United States Code, who is transferred to a foreign country pursuant to this chapter shall be deemed for all purposes to have been deported from this country.

(c) An alien who is the subject of an order of exclusion and deportation from the United States pursuant to section 1226 of title 8, United States Code, who is transferred to a foreign country pursuant to this chapter shall be deemed for all purposes to have been excluded from admission and deported from the United States.

§ 4114. Return of transferred offenders

(a) Upon a final decision by the courts of the United States that the transfer of the offender to the United States was not in accordance with the treaty or the laws of the United States and ordering the offender released from serving the sentence in the United States the offender may be returned to the country from which he was transferred to complete the sentence if the country in which the sentence was imposed requests his return. The Attorney General shall notify the appropriate authority of the country which imposed the sentence, within ten days, of a final decision of a court of the United States ordering the offender

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